Sarbu v. Vertullo

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ALIN SARBU, et al., Plaintiffs/Appellants,

v.

DAVID VERTULLO, Defendant/Appellee,

and

JOSEPH CAPLAN, et al., Defendants/Appellees.

No. 1 CA-CV 24-0707
FILED 10-22-2025

Appeal from the Superior Court in Maricopa County
No. CV2019-006073
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
Counsel for Plaintiffs/Appellants

J. Goodwin Law, PLLC, Buckeye
By James C. Goodwin
Counsel for Defendant/Appellee Vertullo
Quintairos Prieto Wood & Boyer, PA, Scottsdale
By Anthony J. Fernandez, Michael F. Tamm
Co-Counsel for Defendants/Appellees Caplan and Haas

Jones Skelton & Hochuli, PLC
By Rita J. Bustos
Co-Counsel for Defendants/Appellees Caplan and Haas

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Jennifer M. Perkins and Judge Cynthia J. Bailey
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Plaintiff Alin Sarbu, the personal representative of Mihai
Sarbu’s estate, appeals from a final judgment and the superior court’s
denial of his motion for a new trial. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mihai died two weeks after he had a scheduled surgery to
replace the battery in his pacemaker. Alin was appointed Mihai’s personal
representative and sued all medical groups, doctors and nurses who
worked on the surgery, including Arizona Heart Anesthesia, PLLC (the
“Anesthesia Group”), and Dr. David Vertullo, the supervising
anesthesiologist and an independent contractor of the Anesthesia Group.

¶3 In January 2021, Alin settled with the medical group
defendants, including the Anesthesia Group. Under the settlement
agreement, Alin “release[d] and forever discharge[d]” Mihai’s claims
against three named physicians, the medical group defendants and the
“agents, employees and contractors” of the medical group defendants.

¶4 Based on that language, Vertullo later moved to enforce the
settlement agreement in August 2023 as a third-party beneficiary. He
argued the superior court must dismiss all claims against him individually
because he was an independent contractor of the Anesthesia Group and
thus an intended third-party beneficiary of the settlement agreement.

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Decision of the Court

¶5 Alin countered that he never intended to designate Vertullo
as a third-party beneficiary to the settlement agreement. To support that
argument, he offered an email from his attorney to opposing counsel, sent
during negotiations, in which Alin’s attorney asked that language be
removed from the draft settlement agreement because “keeping it will
jeopardize our remaining [cause of action] v. Banner and potentially
Vertullo.”

¶6 Alin asked for a jury trial if the superior court did not outright
deny Vertullo’s motion to enforce. The superior court denied Vertullo’s
motion leaving open whether the release covered Vertullo and ordered a
jury trial. After eleven days of trial, the jury found that Vertullo was an
intended third-party beneficiary of the settlement agreement and covered
by its release.

¶7 Alin moved for a new trial because an email was not disclosed
before trial. That email was from a co-defendant’s counsel who refused to
disclose the settlement agreement to Vertullo, absent court order, because
of its confidentiality clause. Alin claimed the email proved that even
Vertullo’s co-defendants did not see Vertullo as covered by the agreement.
He argued the email was newly discovered evidence, which Vertullo
improperly failed to disclose before trial.

¶8 The court denied Alin’s motion, finding the email was
irrelevant to the parties’ intent because it was drafted and sent after the
settlement agreement was signed. Alin timely appealed. We have
jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Third-Party Beneficiary.

A. Jury Trial.

¶9 Alin argues the superior court erroneously tasked a jury to
interpret the release because whether a third party is an intended
beneficiary of a contract is always a question of law for the court. We
disagree. The court acted properly when it sent the issue to the jury. The
court here recognized the release was reasonably susceptible to more than
one meaning, noting the tension between the plain language of the release
and the extrinsic emails from Alin’s attorney. See Taylor v. State Farm Mut.
Auto. Ins. Co., 175 Ariz. 148, 158–59 (1993) (“Because interpretation was
needed and because the extrinsic evidence established controversy over

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 SARBU, et al. v. VERTULLO, et al.
Decision of the Court

what occurred and what inferences to draw from the events, the matter was
properly submitted to the jury.”).

B. Sufficiency of the Evidence.

¶10 Alin next argues the jury did not hear sufficient evidence to
find that Vertullo was an intended third-party beneficiary under the
settlement agreement’s release.

¶11 When reviewing a jury verdict based on sufficiency of the
evidence, we “resolve every conflict in the evidence and draw every
reasonable inference in favor of the prevailing party.” St. Joseph’s Hosp. &
Med. Ctr. v. Rsrv. Life Ins. Co., 154 Ariz. 307, 312 (1987). “[I]f any substantial
evidence could lead reasonable persons to find the ultimate facts sufficient
to support the verdict, we will affirm the judgment.” Styles v. Ceranski, 185
Ariz. 448, 450 (App. 1996).

¶12 The jury heard enough evidence to support its verdict. Most
obvious, the jury received the plain language of the settlement agreement,
which released the medical group defendants and “their agents, employees
and contractors.” Vertullo was an independent contractor. That is
undisputed. The plain language of the agreement represents enough
evidence to prove the elements of a third-party beneficiary claim. See
Nahom v. Blue Cross & Blue Shield of Ariz., Inc., 180 Ariz. 548, 552 (App. 1994)
(holding that a third-party beneficiary may recover if they are indicated in
the contract, the benefit must be intentional and direct, and appear the
parties intended to recognize the third party). We recognize the jury heard
substantial evidence that no third-party beneficiary was intended, but we
will not revisit the jury’s judgment on appeal because it also heard
substantial evidence that Vertullo was an intended third-party beneficiary.
See Gonzales v. City of Phoenix, 203 Ariz. 152, 153, ¶ 2 (2002) (“In reviewing a
jury verdict, we view the evidence in the light most favorable to sustaining
the verdict, and if any substantial evidence could lead reasonable persons
to find the ultimate facts sufficient to support the verdict, we will affirm the
judgment.”).

II. Motion for New Trial.

¶13 Alin’s final argument is about the undisclosed email from a
co-defendant’s attorney who was reluctant to disclose the settlement
agreement to Vertullo because of its confidentiality clause. Alin contends a
new trial should have been ordered given this new evidence.

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 SARBU, et al. v. VERTULLO, et al.
Decision of the Court

¶14 We review the denial of a motion for new trial for abuse of
discretion, viewing the facts in the light most favorable to upholding the
ruling. State Farm Fire & Cas. Co. v. Brown, 183 Ariz. 518, 521 (App. 1995).

¶15 The superior court may order a new trial based on
“misconduct of the . . . prevailing party” or “newly discovered material
evidence that could not have been discovered and produced at the trial with
reasonable diligence.” Ariz. R. Civ. P. 59(a)(1)(B), (D). “A new trial will be
granted only for a cause materially affecting the rights” of the movant.
Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 454 (1982) (citation omitted)
(citation modified). Any misconduct must have “actually influenced the
verdict,” Leavy v. Parsell, 188 Ariz. 69, 72 (1997), or the newly discovered
evidence “would probably change the result of the litigation,” Boatman v.
Samaritan Health Servs., Inc., 168 Ariz. 207, 212 (App. 1990) (citation
omitted).

¶16 The superior court here denied a new trial because the email
was sent after the settlement agreement was reached and was therefore not
relevant to the parties’ intentions when they entered the agreement. We
discern no error because this evidence would not probably have changed
the outcome of trial. See Ring v. Taylor, 141 Ariz. 56, 61 (App. 1984) (the
superior court is in the best position to determine whether conduct
influenced the judgment).

III. Cross-Appeal re Attorneys Fees.

¶17 Vertullo cross-appealed the superior court’s denial of his
request for attorney fees, but he never raised or developed that argument
in his answering brief, so it is waived. Schabel v. Deer Valley Unified Sch.
Dist. No. 97, 186 Ariz. 161, 167 (App. 1996).

CONCLUSION

¶18 We affirm. Vertullo is awarded his costs on appeal as the
prevailing party once he complies with ARCAP 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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